IN RE: Judith FALCO

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Judith FALCO, Appellant, v. TOWN OF ISLIP, et al., Respondents.

Decided: December 24, 2001

CORNELIUS J. O'BRIEN, J.P., FRED T. SANTUCCI, ANITA R. FLORIO and ROBERT W. SCHMIDT, JJ. Shlimbaum, Shlimbaum and Jablonski, Islip, N.Y. (Lark J. Shlimbaum of counsel), for appellant. Vincent J. Messina, Jr., Town Attorney, Islip, N.Y. (Richard Hoffmann of counsel), for respondents.

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Town of Islip, dated March 15, 2000, which denied the petitioner's application for a building permit to construct a single-family dwelling on her property, the appeal is from a judgment of the Supreme Court, Suffolk County (Costello, J.), dated September 27, 2000, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The Supreme Court properly dismissed the proceeding on the ground of res judicata.   The current proceeding is merely the “renewal of issue[s] actually litigated and resolved in * * * prior proceeding[s] as well as claims for different relief which arise out of the same ‘factual grouping’ or ‘transaction’ and which should have or could have been resolved in the prior proceeding[s]” (Ordenana v. Weber, 269 A.D.2d 580, 581, 707 N.Y.S.2d 111, quoting D.C.I. Danaco Contr. v. Associated Univs., 248 A.D.2d 663, 670 N.Y.S.2d 773;  see, Matter of Falco v. Town of Islip Zoning Bd. of Appeals, 283 A.D.2d 576, 725 N.Y.S.2d 221;  Koether v. Generalow, 213 A.D.2d 379, 623 N.Y.S.2d 328).

In particular, there is no merit to the petitioner's contention that in a prior proceeding pursuant to CPLR article 78 the Supreme Court, and subsequently on appeal this court, failed to consider the report of her inspector, who concluded that “no wetland impacts are expected” from the proposed structure application.   The parties, property, issues, facts, and relief sought in the petitioner's previous application for an area variance are essentially identical to the present application, and the inspector's report submitted by the petitioner only enhances the quality and amount of proof submitted.   Thus, “the commencement of [this] proceeding simply to cure defects in the proof and to improve the quality thereof is not a distinction which precludes the application of res judicata” (Matter of Freddolino v. Village of Warwick Zoning Bd. of Appeals, 192 A.D.2d 839, 840, 596 N.Y.S.2d 490;  cf., Jensen v. Zoning Bd. of Appeals of Vil. of Old Westbury, 130 A.D.2d 549, 515 N.Y.S.2d 283).

The petitioner's remaining contentions are without merit.

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